I like many others am breathing a sigh of relief over the Supreme Court’s Hamdan decision and feeling extreme waves of gratitude that there are people like Lt. Cmdr. Charles Swift in the world who value principle more than cynical opportunities for career advancement.

Yesterday’s Supreme Court ruling, definitively curbing the Bush White House’s assertion of nearly unlimited executive power in a time of war, puts the other two branches of government back in business.

The Republican-controlled Congress, which has remained resolutely blind, deaf and dumb as President Bush took national security matters entirely into his own hands, now has little choice but to rouse itself to some sort of action.

And in reasserting the rule of law, the high court has opened the way to what could be major legal action over other executive branch violations of established statutes — about domestic spying, for instance. The ruling even raises the possibility that U.S. forces and Bush administration officials could be tried for war crimes.

The rousing of the legislative and judicial branches is the ultimate nightmare of the unilateralists within Bush’s inner circle, most notably Vice President Cheney and his chief of staff, David S. Addington. They had argued that nothing — not Congress, not the courts, not traditional notions of basic human rights — should limit the president from pursuing the nation’s enemies however he saw fit.

Should limit the president…as Atrios and others have noted, there is no real reason to believe that BushCo. will pay any more heed to the courts than they have any other institution designed to check their power. It would be nice, however, to think that Congress might stop pressing the "snooze" button and get back into the oversight business.

And I hate to be one to bum everyone’s high but let’s face it, we came awfully close. The decision was 5-3 with Roberts not participating because he had already decided in favor of the government previously. We’re basically one vote away from a wingnut block that will insure that future decisions will not go down like this. Remember the Alito cloture vote? It was 75-25 , not even close. Something happens to one of the non-sadists on the court in the next two years, do you really have any expectation that things will break any differently? Because I certainly don’t.

Joe Lieberman did this. Lincoln Chafee did this. And they will do it again. There is no excuse for a New England blue state to have a Senator enabling this shit, and yet they are. As Stephen Poole of Crooked Timber ably demonstrates, this is the kind of fine legal scholarship we can look forward to predominating should something untoward happen in the next two years:

Alito does not challenge the finding that Geneva Common Article 3 applies; he argues instead that the special military commissions used at Guantánamo do in fact constitute what Geneva demands, a "regularly constituted court" [p177]. This is a difficult argument to make, given that Geneva’s elucidatory commentary explicitly defines "regularly constituted" courts as meaning "ordinary military courts", and explicitly excludes "all special tribunals" [p180]. Because the Guantánamo military commissions do not rise to the standard of ordinary courts martial and are used nowhere else, they are clearly the sort of "special" tribunals banned by Geneva, as the Court in fact found.

Nonetheless, Alito tries his semantic best to weasel out of the plain conclusion. He makes the risible assertion that the military commissions cannot be "special" because "special", in his mind, means "relating to a single thing", and it is proposed that lots of these military commissions be conducted for Guantánamo prisoners. So they cannot be "special" because, um, they are numerous. Hence, they must be "regular" after all [p181]. It is rather pitiful. One is driven to suppose, on this logic, that the US’s renowned Special Forces likewise consist of a single uber-soldier, like Jean-Claude Van Damme with lasers for eyes.

I’m almost afraid to breathe for fear that the Club for Growth will stop doing our job for us as they work to defeat Lincoln Chafee. But unless some serious hurt gets put on Joe Lieberman, we’re looking at another Gang of 14 lapdance for James Dobson and the wingnuts.

I wonder if W got any insight since his ludicrous presser yesterday wrt Hamdan.

Maybe Elvis whispered in his ear and gave him his take.
>>>>>>>>>
You ain’t nothin’ but a hound dog
cryin’ all the time.
You ain’t nothin’ but a hound dog
cryin’ all the time.
Well, you ain’t never caught a rabbit
and you ain’t no friend of mine.

When they said you was high classed,
well, that was just a lie.
When they said you was high classed,
well, that was just a lie.
You ain’t never caught a rabbit
and you ain’t no friend of mine.

It’s good to see the Supreme Court finally decide the Constitution has no asterisks, but i have no doubt the rubber-stamping hysterics in Congress will seek to write Bush a new blank check, and seek to indict the Dems for treason while they do it. That’s why the Democats should take the side of the Court and the rule of law as exemplified by the statement of Swift, who said “this is victory, people.” The Dems need to hammer that over and over and over, that it’s a victory for our entire nation.

I just got off a plane and am somewhat disoriented, but someone explain to me why a 5-4 court is going to undo Roe v. Wade or any other case we care about. Is Kennedy the new O’Connor? Is he the swing vote? Is he more conservative than O’Connor?

There is something in the NYT coverage of the Supreme Court decision yesterday which I don’t understand, and maybe you or a commentator can explain it to me. The NYT states that “The justices also rejected an effort by Congress to strip the court of jurisdiction over habeas corpus appeals by detainees at the prison camp.” My question is, what was this effort by the Congress? I don’t follow legislation close enough. Is it in the Patriot Act?

What’s so scary is not only the nominees Bush will come up with if he gets a chance but also the Democrats we are stuck with on the Judiciary Committee at this time. Dinos all. Some like Kennedy are good old war horses who have seen their day and have no fight left in them, and others, like Feinstein, completely bewilder me. I just can’t over that she passed Scalito out of the committee to the full Senate even though “he didn’t answer any of my questions”. If Bush gets another shot at the Supreme Court, the Democrats are just going to have to bite the bullet and face down “the nuclear option” and try to get the country on their side, our side.

Article III, Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
______

I see nothing in the Constitution giving Congress the power to strip or otherwise limit the purview of the SUPREME Court. Inferior courts, yeah. But The Supremes are primus inter pares.

Article III, Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made…

In other words, they get to rule on everything with Constitutional import — EVEN (I would say especially) laws passed by Congress ostensibly restricting their purview. The Legislature’s only way around it is the Constitutional Amendment.

Hi Jane and I do love the photo– if you turn them toward each other, one can imagine them having a heart to heart serious talk…

What are we gonna do? Do we have to tell Laura and Hadassah? Isn’t there someway around it?

Do I have to declare my love for you more than I have, Mr. Presidente and ditch the Dems officially? Will you still love me tomorrow? I know you don’t tolerate losers, but that Lamont character– he’s, he’s GOT character. I am all a-dither, tell me what to do! You’ve been real good at fooling the people, teach me!

The NYT states that “The justices also rejected an effort by Congress to strip the court of jurisdiction over habeas corpus appeals by detainees at the prison camp.” My question is, what was this effort by the Congress? I don’t follow legislation close enough. Is it in the Patriot Act?

Lawyers? IANAL, but from the opinion I think they mean the Detainee Treatment Act, which is first mentioned on p.2 of the syllabus and taken up in detail on p.15. BushCo said this act meant the Court had no jurisdiction, but the majority disagreed for what seem to be technical reasons. Or, maybe BG is right, ’cause as I said…

Your analysis of Hamdan on the previous thread was very helpful. Before reading it, my impression was that Congress would have to abrogate the Geneva Conventions if it wanted to give Bush the statutory authority the court said in Hamdan that he does not have (to run military commissions the way Addington wants to).

After reading your comment, my impression is that Congress would not need to abrogate Geneva, because Justice Kennedy did not join in the part of the opinion that found Geneva to be violated. Am I reading you correctly?

Congress can pass whatever they like yammering that The Court has no jurisdiction w/repsect to X,Y,Z. And The Court can then properly strike the legislation down.

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…

Thanks Jane for mentioning how close we came this week to a fundamental change in our democracy. We survived by only one vote on the Hamdan case and only one vote on the flag burning amendment. I would be a lot more comfortable with just a little more buffer between a monarchy and a democracy. It needs to be a priority for us on the progressive side to make sure everyone knows that we are on the bleeding edge of a major shift in the personality of America and that if they do not turn out the GOP control of Congress in the midterms we have a serious chance of not living in the country our forefathers intended.
You and the dogs have a great 4th in New England.

I don’t think the SCOTUS ruling is likely to make this a better world in the short term, because in its infinite wisdom the world’s greatest deliberative body (our fucking Congress) is going to fix the rules and help the administration get around the decision. I imagine this will happen with the cooperation of some Democrats (Levin, Liebermam, Landreau…)

Actually, we may end up even worse off as a consequence of this decision, because if Congress acts to eviscerate the SCOTUS ruling, the Bushniks will be in a position to claim even greater legitimacy for their sadistic treatment of the ‘enemy combatants.’ And we know the media is not going to hold anyone to account.

The only way I can see this ruling having any measurable effect is if a miracle occurs and we get a President Feingold in ‘08. Perhaps then his Attorney General could cooperate with international courts and put John Yoo and Cheney and the rest in orange jumpsuits in front of an international tribunal in The Hague.

I felt a bit silly reposting them – don’t think I’ll try a third time!

(Besides, with wordpress’ punctuation aversion, by the time I finished re-punctuating the articles, this thread will have been EPU’d, as well.

I’ve been fantasizing wordpress’ code was written by a radically anti-ownership programmer. No apostrophes, no possesive constructions, no ownership. Social control through punctuation. Elegant. Brilliant.

Then I noticed wordpress eats ellipses. Another theory bites the dust…)

“Remember the Alito cloture vote? It was 75-25 , not even close. Something happens to one of the non-sadists on the court in the next two years, do you really have any expectation that things will break any differently? Because I certainly don’t.
Joe Lieberman did this. Lincoln Chafee did this. And they will do it again. There is no excuse for a New England blue state to have a Senator enabling this shit, and yet they are….”
Jane, thanks again for an as always great post.
FWIW, is there any chance some lawyer types could “guest post” some critical analysis of Alito’s, or Scalia’s, or Roberts’, or Thomas’ SC writings in posts for FDL as a springboard to the traditional media?
These guys are insulated from everything except their oversized neocon ego’s.
I don’t mean in any way to be trying here to make your job and Christy’s any tougher than it already is. Among other things (making us laugh), you educate your readers and the traditional media. I also don’t want to dilute just how difficult it is to fairly translate technical legal writing into terms that are understandable and of interest. Whenever we address an SC decision, it’s at a relatively high level. It might be more “fun” and more “entertaining” to look at what for example Alito wrote about Hamdan. My guess is that these guys really fracture the law routinely in order to defend votes that are pretty indefensible. Perhaps there are some “Ben Domenech moments” hidden in their writings? I am just looking for a way to help these pseudo Justices feel the consequences of their truly un-American miserable jurisprudence.

Re Supreme Court ‘we are only one vote away from total Constitution shredding’ — I am thinking of Feingold’s vote for many of these conservative judges saying that ‘he’ would be the best we can get from Bush.

Will Feingold continue to say that even when one more conservative judge will mean a ultra conservative court backing Bush’s lawlessness every step of the way, we should vote them in?

I am concerned about this reasoning and his total refusal to see the harm. We must fight. And mostly he does, but he has a blind side on this issue and this is going to become a huge problem soon.

I believe that unless we take back at least one part of Congress in November, the fight for democracy will have to take place at the state level. And whether to uphold the original constitution will become a state issue. We must fight there and then move to D.C.

Maybe I’m just worn out from a tough week, but i din’t really understand your request.

Do you want an analysis of let’s say Thomas’s writing style/many mistakes/ mostly voting with the losing side/rarely getting picked to write a majority opinion?

Or do you want just an analysis of what he wrote in this case?

There are probably law review articles or at least American LAwyer article about the former.

Is it that you want someone to anylize and explain all the mistakes of either fact or law in a given dissent?

I’m not sure what you are asking for.

I have not even started reading the decision yet, but expect to get to it Sunday the latest (probably way too late for your purposes), but would take a stab at whatever it is you want, if I only knew what that was?

Shutting down the puter for a while, gotta go get the pizza. Fiday night is always pizza night at my humble abode.

BobbyG and Prostratedragon, whoa! I think Prostated answered my question. Congress tried to by-pass all that you talked about, BobbyG, in the Constitution. The Detainee Treatment Act sound like it might be it. And yesterday the Supreme Court struck it down. We’re all on the same side here. Thanks to both of you for answering me.

Think about it. Article III, Sections 1 and 2 are VERY simple and clear. They don’t need the interpretive intercession of “sophisticated” jurisprudential analysts to tell Us Great Unwashed what they “mean.” Congress lacks the Constitutional authority to limit the purview of the Supreme Court where issues of the constitutionality of federal laws and treaties are concerned (or words simply have no lexical meaning whatever). Period. SOMEONE has to have the last word. The ONLY legislative remedy to to AMEND the Constitution limiting judicial review. So, Congress can pass whatever the [bleep] they want “limiting” judicial oversight. The Court is then within ITS constitutional authority to strike it down.

Bustednuckles @ 3:16 pm (#43) – I think McGavick can safely count on me not voting for him now. Not only is he interested in gutting Social Security, he’s not even willing to be honest about it. He’s for privatization but he doesn’t want to call it privatization, and not because it’s a made-up word. Frankly, I think he makes a false difference between his position and Bush’s when he says he favors individuals managing their accounts. That’s what Bush was calling for, at least at one time.

I like his idea of phasing in means testing, if for no other reason than to prove that most people won’t do it voluntarily.

I also liked this bit from the Seattle Times article:

You can credit Josh Marshall for the pressure to get answers about McGavick’s Social Security position. He has decided to “start tracking some positions here on Social Security”, and several of his loyal readers have e-mailed me in the past two days asking me to follow up.

Josh deserves a lot of credit for the work he and his team are doing on the corruption issues and stuff like this.

my hair had been slowly turning gray but I resisted it for years with hair coloring — then I had an epiphany: my hair now could be any color I desired! I go to a good Democrat-owned hair salon and have experts care for my hair — even they thought my current brilliant color might be a tad much …

The power of judicial review is held by courts in the United States, which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, which states:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish%u2026 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution%u2026″
The power to strike down laws is not specifically listed, but is an implied power derived from Article III, and Article VI, which declares that the Constitution is the supreme law of the land: no state or federal law is allowed to violate the Constitution. The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of Judicial review was first established as part of Federal law in 1803 in the Supreme Court decision Marbury v. Madison.

naschkatze, I don’t think they fully struck down the DTA. I think they just said that it didn’t rob them of jurisdiction in this case because the case got to them before the DTA was enacted, and there was nothing in its legislative history saying that Congress was looking at their eventually ruling in this one case when the law was passed—therefore the SCOTUS was free to go on with what was already before it. (whew!)

Now, not having read the whole thing, I don’t know whether anything further was said in either of the opinions, or what the court would say about a new case that comes before them concerning the DTA matters. Maybe it would in the end come down to the primacy argument. My point here is just that I don’t think the DTA limitation as such was overruled.

Incidentally, isn’t this the matter in which Graham and Kyl tried their little stunt of inserting backdated “debate” into the record? They were trying to get around just what was ruled.

(Boy is it ever kludgey around here today, not only at this site, but especially bad on refresh and preview. Have had to restart mozilla twice to break through)

Do any other lawyers, or people who have read the Hamdan decision, want to take a stab at my question to Mary at 3:03 above–would Congress have to abrogate the Geneva Conventions in order to give Bush all the authority he wants re military commissions?

“Bush, Cheney, Rice and perhaps Rove and others should be held accountable pursuant to Article III of the Geneva Convention and charged with criminal acts under the War Crimes Act. I think.”

I hope Bush /Cheney /Rice /Rove /Addington /Yoo et al never know a moment free of fear for their freedom. Just as Kissinger never imagined fleeing France and Pinochet never expected arrest in the UK – much less trial in Chile – the Bush junta believe they are immune from prosecution.

I believe they are as wrong about their own immunity as they were on WMD’s, global warming, Iraq, and Katrina.

George Will is amusing to me because he is almost always completely wrong. He begins that article with a breathtaking oversimplification and ends it with a fact-free nod to history:

Lieberman is among the last of the Jacksonians, those Democrats who, like the late Washington Sen. Scoop Jackson, support both domestic liberalism and a muscular foreign policy.

Since when is censoring records, telling rape victims to catch a cab, admonishing your own president for private sexual relationships, enabling a power-hungry corporate-friendly thug administration and tilting the Supreme Court as far to the right as possible considered “domestic liberalism?”

And how does supporting a misguided, poorly planned and painfully costly war that has weakened America automatically equate to “muscular foreign policy?”

Will is one of those unique individuals who is highly intelligent and yet totally unable to use that intelligence to divine the right answers. Him having a seat at the punditocracy is like building a basketball team around someone just because he was as heavy as Shaq.

The rousing of the legislative and judicial branches is the ultimate nightmare of the unilateralists within Bush’s inner circle, most notably Vice President Cheney and his chief of staff, David S. Addington. They had argued that nothing %u2014 not Congress, not the courts, not traditional notions of basic human rights %u2014 should limit the president from pursuing the nation’s enemies however he saw fit.

Do any other lawyers, or people who have read the Hamdan decision, want to take a stab at my question to Mary at 3:03 above%u2013would Congress have to abrogate the Geneva Conventions in order to give Bush all the authority he wants re military commissions?
_______

LOL!! Let’s say, just for grins, that they did opt out of Geneva. THAT would make for a swell military recruiting environment. They’d have to re-enact the draft at the same time.

lhp at 3:29, thanks very much for your response.“Do you want an analysis of let’s say Thomas’ writing style/many mistakes?”

Yes, either an “analysis” or simply a listing of some of the worst examples in a way that non-attorneys could understand. IMO, if a SC Justice makes a dumb error in an opinion, that’s “news” the way the TM defines it.
I heard Alito’s dissent in the Hamdan decision was a very “technical,” one. Does Alito always apply those technical arguments? I doubt it. I bet he waits for a case where he has nothing else with which to defend the indefensible and only then buries his prejudice reasoning in highly technical jargon?
Sorry I was not more clear initially.

Dover Bitch @ 3:53 pm (#93) – I suspect that Will just looks at the ratings various “liberal” groups give Lieberman, which are shockingly high. That method would certainly fit his way of analyzing things.

Prostratedragon, thanks. I didn’t mean to say the entire act was struck down, just an aspect. Yes, your explanation of Detainee Act has some common ground with what Kyl and Graham tried to do after the fact.

While we are all enjoying watching things impove, I thought you might be interested in how well FDL is doing – have a look at your stats in Alexa. According to this you are beating the heck out of a lot of other blogs – I think you are doing something very right…

(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:

‘(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–

‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

‘(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who–

‘(A) is currently in military custody; or

‘(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’.
______________________

Remember the Alito cloture vote? It was 75-25 , not even close. Something happens to one of the non-sadists on the court in the next two years, do you really have any expectation that things will break any differently? Because I certainly don’t.

Joe Lieberman did this. Lincoln Chafee did this. And they will do it again.

The presidents power grab is fairly absurd considering its based on trying to build up some silly honest cowboy cult of personality that failed in part because Bush is a rich snotty liar.

Some of the main functions of the President include having a person to make quick decisions in time of great need, negotiate with foreign leaders, and lead the country toward unity.

An total failure, but I guess my point is that they are trying to grab all this power when there is no critical need for split second speed. These things are long standing and have had more legal planning to avoid brining in Congress than the speed if they had just brought in Congress.

Congress is perfectly capable of working though these issues an creating law that can be checked by the Supreme Court.

The press are a bunch of losers in this as well since they are complicit in trying to consolidate absolute power in the hands of one man… one may who will clamp down on the few reporters that don’t have a boss or their bosses boss based in the CIA.

So we got outta Bush:
9/11
New Orleans
No Press
No Congress
A barely independent Supreme Court hanging by a thread

and our brand equated with a steaming pile of hypocritical poop the world over.

Thank God we live in a great country or we would have no chance or riding this pimple of history out.

I have an idea about how to reduce the deficit. Since Congress does nothing anyway, why don’t we just send them home and apply all their salaries and bennies to the debt. I doubt we would see any change other than a reduction in hot air. Hey, that might help global warming. Can anyone start a petition? Or call Al?

I am sympathetic to Feingold’s “X is the best we could expect from Bush” argument, but not completely convinced. I am not at all amused by Lieberman’s vote for cloture followed by a vote against confirmation. If someone’s so bad that you aren’t going to vote for them on the floor, don’t vote for cloture.

I view Supreme Court nominations as critical as constitutional amendments, which are subject to a 2/3 vote to approve. If a nominee can’t garner 2/3s, find someone else. And yes, I’d say that to a Democratic administration, too.

“Something happens to one of the non-sadists on the court in the next two years, do you really have any expectation that things will break any differently?”

Agreed, Justice Stevens is 86 years old. It’s another reason, the mid terms are so critical. If one of the five real Justices has to retire, we need to be able to at least block Bush’s nominations. Then of course, we have to win in 08.

Saw John Yoo (Woo?) on the tube this morning as well. He ought to be dis-barred once the Constitution Crimals are brough to answer for what they have done.

How repubs and the few dems that lapdog them can stand there face in the mirror or look at a portrait of statue of some of the great former politicians is beyond me (not really they are just rich power hungry destroy the planet and get mine swine).

But these laywer that insulated themselvs with the flag and the power of the office of the POTUS are criminals. In the paralance of our time that would be “activist laywers” leave it to * Bushove * to attack on a weakness of theirs. They call out activist judges – they have activist lawyers that think they can re-write law including the ultimate constitution and hide it.

“…If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it…”

Okay, Jane, you got me off my ass–I gave $10 to Ned, $10 to Sherrod Brown and $10 to Ted Strickland (running for Gov. against evil incarnate Ken Blackwell. I’m in Ohio). It’s all I can afford on my lowly English professor salary, especially in the summer when my husband–also faculty–doesn’t get paid. I hope it helps, though!

As for X is as best we could do that is not true per se. Alito was/is an obvious liar.

At least, and this might be worse – but from a voting stand point – with Roberts you saw someone intentionally groomed to keep low and off the radar. They threw him in there as a judge at the last minute just to round him out and so he would not have to many decisions.

Bush “the powerless” is packing all the courts of the land and these decisions will pave the road to Washington for these crazies.

They are also hidding people below the radar with the obvious intent of having an unmarked zelot. Think Bork, but if had shut his mouth for 10 years…that’s the plan. And you can bet it was discussed over drinks.

I have a question for the legal and international relations folks in the crowd. Why hasn’t the Hague gone after the Chimp and Darth and Rummy? They’re thumbing their noses at the Geneva Conventions and clearly committing war crimes. I keep hoping they’re going to be indicted internationally like the thug/dictator crowd so often is. Even if they were able to evade prosecution, the bringing of charges would be significant. Anybody know anything about this?

for those not watching Tweety – Melanie Menace ends her joust with Sharpton by thanking Tweety for having her on given that “a lot of liberals” tried to get him to stop inviting her after her Monday appearance… Tweety says something like “no problem” then says he agrees with her on the NYT and that the story was one “we didn’t need to know but it helped the terrorists a lot” at which point Sharpton thanks Melanie saying “you do a lot for my cause whenever you are on” (Al does snark)

“…The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable…”

Speaking of “the right words at the right time,” siun, I’ve been wondering, ever since you mentioned the Gaelicness of your name, how to pronounce it properly. Going on the basis of “Siobhan,” is it phonetically close to “Shun”?

Oh siun, she was so scared in the face of truth– he nailed her on MLK and morality. Love me some Rev Al– he’s got press secretary when we win. Fast on his feet and knowledgeable. My bud says, if he could dance like he can he can think speak , he’d blow Astaire away.

Alito sure is “special” to make his exceptions re the tribunals’ accepatability under the Geneva accords. But his legal mind now is exposed by Jane as rather “ordinary” when his own interests come into play.

My mom is 86, the same age as Justice Kennedy. She reads Molly Ivens at her hand-stitched quilt groups and has converted a lot of spinsters from R to D over the past 20 years or so.

Mom is incredibly vibrant and may live longer than me, but she told me on the phone last night she’d give her heart to Justice Kennedy if that was what it would take to keep him on the bench until poower shifts.

Hamdan Gitmo Context and Who paid attention to the “Anti-Torture” legislation stripping jurisdiction from the Courts?

One context for Hamdan comes from following the military tribunal arguments and putting the President’s actions in context for what is allowable under the common law of war and under the UCMJ. {BTW – Larry below thread in his discussion of Stewart has one of the big arguments for secrecy – the counterweight is that at GITMO, the lawyers are often authorized to have access to the information – so a Stewart situation would not necessarily be avoided IIRC the reports. Also, the roundups in Afghanistan, by now almost 5 years old, and information used for those have in most instances at this point seem less likely to have a national security impact, but there do need to be mechanisms for protecting valid security interests as well as allowing participation by the accused. It’s primarily about a valid oversight mechanism to insure that it is actually national security interests that are the cause for keeping information secret. THAT is where legislation and thought should have been targeted IMO.)

Another context that helps understand the decisions is a look at the overall history of the PResident’s and Congress’ activities vis a vis detainees. Efforts by the Executive to sidestep the Geneva Conventions [and the US War Crimes Act] with Congress later stepping in via the Detainee Treatment Act “DTA”(commonly called the anti-torture legislation, but it is so much more, or less, depending).

There is the initial response to 9/11, with the invasion of Afghanistan and the hunt for al-Qaeda operatives associated with 9/11. [none of whom were Iraqi]. Cheney, Gonzales, Addington and the President seemed focused not so much on “how effectively” can I pursue this venture, but “how much power” can I derive from this venture – what can I get by with?

Under a “criminal” approach to the terrorist issues, even if military force is used to initially capture (as with Noriega), the civilian courts must be used and they come with a set of rules. Under a “military” approach to the terrorist issues, the sets of rules come from Congress – which is ready to pretty much roll over – and the military itself – over which the President has direct command and control.

An early decision is made – if not widely shared within the administration – to dispense with a criminal approach and adopt a militarized response – not just a nominal “war on terror” but a “regime change” based invasion and occupation of Afghanistan to not only go after terrorists but (seemingly more important in hindsight) to depose the “illegitimate” Taliban government (recognized by only a very few countries) and replace it.

An authorization to use military force (AUMF)is sought and received, but it does not mention regime change, overthrow of domestic laws, etc. The September 18, 2001 AUMF reads:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

No reference to establishing new governments. It does act as a toehold to trigger Presidential war powers, even though it is not a declaration of war. Back at the WH, the question is – how far can we go? The UCMJ, which everyone in the Yoo-Addington-Franks et al group seems to overlook (after all, the President is “Commander in Chief” right?) and rules for courts-martial are deleted from consideration. After all, if DOJ can be whipped so easily into shape, surely the military will be an even easier knockdown? They’ll find out.

A November 13, Presidential Order is drafted to set up the system of commissions that Addington, Gonzales and presumably Ashcroft (who is spending a lot of time acting like a politician and less like an AG) decide will let the President avoid both civilian and military courts and control detention and interrogation through a direct chain of command with no real civilian or miltary judicial impact. Powell (the only one with real military experience) and Rice are supposedly cut out of the loop and only learn about this as a fait accompli.

Having dispensed with the oversight of civilian courts or courts-martial, there remain a couple of other statutes that might hamper the President. First among them, the Geneva Conventions, but followed very closely – and with a much bigger shadow – by the United States War Crimes Act.

Already, the President has been considering and possibly authorizing activities that would not be allowed by the Geneva Conventions. Over Powell’s objection and apparently objections from counsel for State, Gonzales tells the President that the way to approach this will be to create a new category of persons who are not subject to civilian court protections, military court protections OR the Geneva conventions. Let’s call them enemy combatants.

They craft this approach from laws of war that have, over time, recognized distinctions between soldiers serving in armed forces of a nation under normal conditions and those same soldiers who, in a time of open conflict, dispense with their uniform and identity papers and attempt to blend in with civilian populations while remaining soldiers of a foreign govt, often intent on sabotage and spying. “Unlawful” combatants.

Where al-Qaeda “soldiers” who could dispense with uniforms and ids? Or were they criminals and cutltists – like Anarchists in the past, or skinheads, or US militia groups? The WH had decided: Soldiers, not Criminals. This is a military, not legal, situation. But the terrorists were all, almost by definition, immediatly involved in illegal war. One large downside – when you decide to engage in a war on an enemy of soldiers who are none of them in uniform or with id, and you decide no rules apply to them — how do you distinguish who you can brutalize from the normal civilians who do remain covered by the Conventions? One way would be to control information to insure that EVERYONE is al-Qaeda. Mistakes can’t happen – bc mistakes ARE war crimes. No stretchy legal definition of “illegal” combatants exempts civilians from the Conventions.

In a dizzying dance, the President and Co. spend some time sending out conflicting signals. al-Qaeda are enemy combatants– and Taliban too. No, wait, maybe Taliban are POWs. Iraqis soldiers are enemy combatants – ooooh, well no, they are soldiers and POWs, no, wait, they could be Iraqi soldiers AND al-Qaeda – - – it was a mess with not clear rules for soldiers.

Gonzales acknowledges in writing, to the President (and yet we incredibly still made him Attorney General) that the reason they are using “enemy combatants” is to avoid 18 U.S.C. Sec. 2441 (c) of the War Crimes Act – War Crime includes any “grave breach in any of the international conventions signed at Geneva 12 August 1949,” (c-1) and also conduct “which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, . . .and which deals with non- international armed conflict(c-3).

While DOJ wasn’t a tough sell, sections of the military proved tougher than had been expected. Alberto Mora made repeated efforts, put his objections in print, called out Yoo, etc.; a group of JAG officers met privately with the NYS bar, officers appealed to Rumsfeld to allow them to “take the high ground” back and comply with, at a minimum, Common article 3.

Cambone, Rumsfeld, Cheney and Addington, with Haynes at Pentagon – held fast. Ashcroft was busy leading DOJ through the Padilla minefield, and heading up cases like Arar, resulting in secret rendition for torture, covering for Rove and playing basketball with lobbyists. Some in Congress became very concerned about torture after Abu Ghraib, others realized with memos emerging,that the PResident was on very shakey legal ground and the WH could end up in hot water, some even seemed to awaken to the fact that soldiers or agency employees WERE, despite protess to the contrary, engaging in interrogations that violated Geneva Conventions and our War Crimes act, probably under orders or without intervention. If the fiction that Common Article 3 did not apply fell – the brunt would be borne, not by the President and his lawyers in DOJ, but by soldiers and CIA personnel who were staring the War Crimes Act (and other US laws which they were feoloniously violating at the PResident’s direction) in the face. The PResident had no intention of being on the front lines for punishment if his policies were invalid. People who were working hard to protect the country would be his frontline of pawns – protect the king. Enter the Detainee Treatment Act.

So I checked with my friend who’s generally not interested in news or politics, and he says he heard something about the Hamden decision but didn’t know what it was about.

I only hope Democrats will keep this decision in the news. Wouldn’t it be great if they defused the argument that “there’s not enough information” to tell if Bushco has overstepped his bounds with NSA spying, bank spying, etc. with it?

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

And, from the very end of the ruling:

“Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

I especially love the phrase “a law repugnant to the Constitution.” We’re not talking about mild disagreements here – we’re talking about something that flies in the face of what it means to govern a free and open society.

Congress shall pass the laws, the executive branch shall administer the laws, and when there is a dispute over the meaning of the laws, the Judicial Branch shall decide the laws. Not the Executive Branch, and not the Legislative Branch. Hard words for a self-proclaimed “decider-in-chief” to swallow.

it’s “lazy irish” for Joan acc to one book and I sorta like that description … when I got divorced, I “translated” my confirmation name “Joan” (for Joan of Arc of course!) along with a few other changes since they were included in one handy price

And my Dad had wanted to name me Shoon when I was born after a favorite character in his favorite book

BlueUU, there’s also the pragmatic answer that, unless or until the United States people — through their elected representatives — take the culprits down a peg or several, any act by the World Court against the most powerful human being on the planet [GAWD!] would be pretty much “a form of words” — correct and honorable among right-thinking people everywhere, but functionally moot.

Basically we need to “try” this before they change it; what were Kyl/Graham/Levin trying to do with this bit of code? Why would an otherwise outstanding Dem Senator sign on for this? This is so uncharacteristic that I’d even think these other two had photos or something, it makes no sense based on Levin’s voting record.

The only other defense I could see Levin using to rationalize his position is that which Kirk Murphy outlined in the EPU zone last thread. This makes sense, but it also could have been handled with entirely different and much better legislation.

And what is the position of progressives here in the net and grassroots? Do we advocate civilian courts or UCMJ? (I don’t believe we would ever, ever advocate the remaining, indefinite holding…)

Cujo … I hope that someday the Iraqi people get to bring the charges against this crew in the Hague … and that includes the congresscritters who approved or allowed the war crimes on both sides of the aisle.

neuro – After reading your comment, my impression is that Congress would not need to abrogate Geneva, because Justice Kennedy did not join in the part of the opinion that found Geneva to be violated. Am I reading you correctly?

I probably wasn’t as clear on that as I should have been – I’m going to do Detainee Act and Geneva conventions next, together, but I have to go to the store and take care of horses first.

Kennedy did join in on the Geneva conventions aspects except for one section of Steven’s opinion. Common article three provisions require the use of “regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. Kennedy’s opinion, the shortest (I think) and most clear of them all(also JMO), discusses the Conventions and UCMJ and why the commissions are both not in accord with the UCMJ and are not “regularly constituted” under Article 3 for many of the same reasons.

So he does go along with the application of Article 3, just not in all the specifics that Stevens uses – like being it being a requirement to comply with the Conventions for the accused to be present at the trial and privy to evidence against him.
Sorry about that

Went back and calculated total family political donations as a result of this blog. Dang if it isn’t 17 with a comma.

Pebble in the lake: many unknown good consequences of your actions. A lot of these donations were in response to pleas from folks like B. Muse and Howie Klein. I might have heard about Webb in the newspaper, but why it was IMPORTANT to donate to him came from the energy and passion here.

WARNING: Explicit Bible content :)

Matthew
15 Neither do you light a lamp, and put it under a measuring basket, but on a stand; and it shines to all who are in the house.

16 Even so, let your light shine before men; that they may see your good works, and glorify your Father who is in heaven.

Rayne 146 – there were reasons that made it attractive, in particular that they got the anti-torture provisions (which they aren’t bothering to enforce). So, although I was upset, there were reasons. But they seemed so naive as to what was going to happen – actually surprised when Gov leaped in to actually— strip jurisdiction under the jurisdiction stripping provisions. DUH!

They just need to be really careful and much more aware now. Do things right, not fast.

Migraine coming on, halo effect starting. I might be able to fend it off if I drop off line for a bit and do some aspirin and caffeine.

Might have been brought on thinking about all of what’s ahead in light of Hamdan. We still have so much work to do.

Mary, I can believe the torture angle; based on what I know of Levin, I can believe he’d make a trade. But you’re correct, they must do this right and not expediently. The Bushista-Neo-Con faction will take a mile if ever given a fraction of an inch.

Which makes me think in spite of the risks that Kirk Murphy outlined in re: security, we must ask for future handling that offers maximum sunshine. In other words, processing of cases via UCMJ is not acceptable — especially while Rumsfeld is still SecDef. (Makes it all the more clear why he is still SecDef, doesn’t it? going UCMJ was their fallback, would offer them the most cover. They could control the venue and the code.)

This may explain why all the Wurlitzer-wide whining about “what a circus the Mossaoui trial was” — they do not want ANY of the Gitmo folks to go through public scrutiny, nor do they want to be held to standard evidentiary rules.

Will come back after the halo abates. Keep working at them, gang. No more Joe-nertias ever again.

Rayne, I don’t know if you have seen it yet. There is a new over the counter product called ‘Head On’ that you rub on your forehead like an underarm stick. It’s just for migraines. Might check it out. I feel for ya. They are worse than awful.

Comes now the big question, Who enforces this decision? Bush has bagged all questions up until now saying he was waiting on this decision. Now it’s there. Looks like the only enforcement could come from the courts, until [hopefully] after November. I agree that what he’s going to do is either nothing, or some jacked-up version of the same thing. This Administration treats any Oversight like an annoying gnat…

- Are there court challenges in the works that can force him to do something decent?

- Are the Unwarranted NSA Domestic Spying challenges active so that they might rely on this decision?

…”but I have to go to the store and take care of horses first.”
Thanks for the as per usual, great legal insights.
BROKEN TRAIL, next Thursday, AMC, lots of (500) Mustangs? horses running around beatiful vistas. Kind of Sir Walter Scott’s Ivanhoe meets Robert Duvall’s wild West.

Wouldn’t it be ironic if Lamont goes to the Senate from CT, yet his votes are cancelled out by Democrat-in-name-only, pro-Bush/Pro-Iraq war Ed Case from Hawaii? We need to fight to keep Akaka in the Senate. Spread the word and Support Akaka!